Jewish World Review June 14, 2006 / 18 Sivan, 5766

Paul Greenberg

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Congress vs. justice | The founding fathers were great statesmen, not flawless prophets. Their hindsight was reliable enough, going all the way back to Athenian democracy, but their ability to anticipate the future wasn't perfect. (Whose is?)

Consider Federalist Paper No. 57, which is often attributed to dear old, theoretical old James Madison. In it, he assures citizens that Congress would never abuse its authority under this proposed new Constitution because its members "can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society."

Good theory. Practice is something else. Even the founders, it seems, nodded on occasion. James Madison, if it was he rather than Alexander Hamilton who wrote No. 57, was confident that Congress would make no laws giving its members special privileges, but he failed to foresee how its members might interpret the law, including the Constitution itself, to make a privileged exception for themselves.

Consider the current legal case, political controversy and sizzling-hot potato that might be styled Congress versus Justice.

It seems the Department of Justice duly obtained a warrant from a federal judge allowing the FBI to search for specific documents in the congressional offices of the Hon. William Jefferson, U.S. representative and suspicious character from the Great State of Louisiana. And search the FBI did.

Whereupon the equally Hon. Dennis Hastert and indignant company in the House declared a constitutional crisis. For this wasn't just an ordinary suspect but . . . a congressman!

Quick, call the lawyers, the professors, the constitutional gurus and all professional pettifoggers. Republicans and Democrats in the House rose as one to defend their suspect colleague, who had already ignored one subpoena in his valiant effort to resist another.

Who says there is no honor among congressmen? There's nothing like a challenge to congressional privilege to revive bipartisanship.

After some $90,000 in literally cold cash had been found in Rep. Jefferson's freezer at home, the feds got a search warrant and went through his office for what an informant had told them was evidence of a bribe. After all, why is a congressman's office different from all other offices subject to a proper search warrant?

Because, the FBI's critics point out, Article I, Section VI of the Constitution declares that members of Congress shall not be questioned "for any Speech or Debate in either House . . . ."

And might not the papers seized from Congressman Jefferson's office have some connection with a speech or debate in Congress? Doesn't that make congressional suites off-limits to law enforcement?

Not necessarily. A court could refuse to consider any of his records linked to speech or debate in the House, but choose to admit other evidence indicating that the Honorable took a bribe. After all, it's the Speech or Debate clause of the Constitution, not the Congressmen Are Above the Law clause.

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Then again, Congressman Jefferson could argue that bribery now has become an accepted part of speech and debate in the House. Whatever one thinks of that argument, it does show a refreshing candor.

All the clamor in Congress moved the president of the United States, caught between an angry House and his administration's Justice Department, to sequester the documents seized by the FBI for a 45-day cooling-off period. Which would seem a prudent precaution until a decent peace can be made between these two branches of the government.

The really shocking development in this case has been the rumor that high officials of the Justice Department — up to and including the director of the Federal Bureau of Investigation and the attorney general of the United States — threatened to resign if they were told to relinquish evidence seized under a court order. Poor deluded lawmen, they seem under the impression that a congressman enjoys no more rights than the ordinary citizen.

Can there still be officials in Washington, even in this day and ethically relaxed age, whose scruples are such that they'd actually give up their prestigious posts rather than violate their oath to enforce the law? What a quaint attachment to simple honor. How 18th century!

What, one wonders, would the author of Federalist No, 57 have to say about this hoked-up constitutional crisis? One needn't wonder. That same Federalist Paper poses the question, "(W)hat is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society?"

The best and highest guarantee against such arrogance, says Federalist No, 57, is "the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it."

And its author adds: "If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty."

We can't say we weren't warned.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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